When you’re injured at work, you expect that your employer’s insurance carrier will dutifully provide you with proper medical treatment for your injury. After all, future medical care is one of the “benefits” injured workers are entitled to in California. Denial of medical treatment is the number one frustration we hear from our clients on a daily basis.
What injured workers quickly discover is that their medical treatment is strictly controlled by the insurance carrier and their medical fate is in the hands of a doctor who has never treated them and may not even have their complete medical records. This process is called Utilization Review (UR). Under UR an outside physician gets to decide whether or not the insurance company should authorize the medical treatment prescribed by your primary treating physician. This doctor doesn’t even have to be licensed in California.
If the medical treatment prescribed by your physician is denied, your only recourse is to appeal the decision to an Independent Medical Reviewed (IMR). In California, MAXIMUS is the company contracted to conduct IMR reviews. Like UR doctors, the IMR doctor deciding your fate, has never met you or treated you and does not need to be licensed in California. In fact, their identity is protected. If your medical treatment is denied by UR, your chances of IMR overturning the decision are not good. California Workers’ Compensation Institute, an insurance research group, found that 91% of IMR decisions uphold the UR denial. If the treatment is denied by IMR, absent a change in circumstances, the denial will be in effect for one year.
While an injured worker has the right to appeal an IMR determination to the Workers’ Compensation Appeals Board, the only legal bases on which to appeal are fraud, conflict of interest, or mistake of fact. However, even if your appeal is successful the WCAB still cannot overturn the IMR doctor’s decision. If an appeal is granted, the remedy is referral to a different IMR for another review. Yes, you read that right, your award is to go through the IMR process again!
Many injured workers end up seeking treatment for their work related injuries through private insurance, Medicare or Medi-Cal. A study by J. Paul Leigh, a health economist at the University of California, Davis, estimated that only 1/3 of necessary medical treatment and lost wages is being paid for by workers’ compensation insurers.
The lack of adequate medical care for injured workers today is the result of Senate Bill 863, which was passed on August 1, 2012 and signed into law by Governor Brown on September 18, 2012. This law was the result of lobbying by big businesses and insurance companies, who have influence over the State Legislature and the Governor of California. We remind our clients that you also have a political voice. We recommend you go to Voters Injured at Work (www.viaw.org) for information on how to become involved with fixing this broken system.
To read more about the dismal state of medical treatment for injured workers all over America I encourage you to read Insult to Injury by Michael Grabell at http://www.propublica.org/article/the-demolition-of-workers-compensation.
According to the California Highway Patrol, 223,128 people were injured in motor vehicle accidents in California for the year 2013. If you were injured in a motor vehicle accident you probably have already thought to hire a personal injury attorney. However, if the driving or presence in the vehicle was related to your work, you may also be entitled to workers’ compensation benefits.
How do you know if your involvement in the vehicle accident is “related” to your work? The obvious example is a truck or bus driver who is involved in an accident when driving their delivery route. There are additional less obvious situations. For example:
I had a case where an employee who did work from home was traveling from the office to her home and suffered an injury in a car accident on the way from the office home. She received workers’ compensation benefits because she had work files in her car and was planning on doing work from home that evening. Generally, if you sustain injuries in a car accident that occurs on your way to or from work, this falls under the “coming and going” exception and you would not qualify for benefits. But as you can see from my example, there are always exceptions.
Even if you file a claim for workers’ compensation benefits, you still have the right to sue the person who is at fault in the accident. The opposite is true as well. If you have both a workers’ compensation case and civil lawsuit, we call the civil lawsuit the “third-party case”. If you receive a settlement or award in your civil lawsuit, the insurance carrier in the workers’ compensation case is entitled to a take a “credit” for the money you receive in your civil lawsuit. For example, if you receive $20,000.00 in your civil lawsuit from the at-fault party and you receive an award of $50,000.00 in the workers’ compensation claim, the workers’ compensation insurance carrier gets to take a “credit” for the $20,000.00 you already received in the civil lawsuit and only has to pay you $30,000.00. This is done to avoid double collecting.
There are benefits to filing both a claim for workers’ compensation benefits and a civil claim against the other driver and their insurance company. Workers’ compensation does not cover damages such as the loss of your vehicle or pain and suffering. In workers’ compensation you receive medical treatment, temporary disability (partial lost wages due to the injury) and permanent disability. Also, workers’ compensation is a no-fault system, unlike the civil system where you must prove that the other driver caused the accident. Even if you are found to be at fault in the vehicle accident you are likely entitled to workers’ compensation benefits.
Your workers’ compensation or personal injury attorney should be able to refer you to another attorney who specializes in the other field. Some firms handle both types of cases or have a good working relationship with other attorneys who do specialize in related areas of law.
DISCLAIMER: This post provides general information only and is not intended to serve as legal advice.
The Division of Workers’ Compensation has issued its report on the Jerry Brown reforms, touting their success. What planet are they on? The only parties benefitting from the reforms started by former Governors George Deukmejian, Pete Wilson, Gray Davis, Arnold Schwarzeneggar and completed by Jerry Brown, are the insurance companies and the companies they hire to deny medical treatment. The reforms have resulted in indemnity benefits being reduced to workers and their families by almost half. The current report touts the “increases” but that is grossly misleading. Although the money amount for percentages of disability has gone up, the method to determine the payment has changed. For example, severe pain gets a worker 3% for a grand total of $2,610 for life. And then, the “reforms” allow insurance companies to deny treatment and medications than would help alleviate that pain, with no right for injured workers to have an independent judge review the denials. The only positive thing you can say about the report is to agree that is working as intended: to reduce benefits to injured workers and their families, while at the same time providing very little relief to small employers. Sadly, there is little if any political will in the state of California to turn this around. Maybe Gavin Newsome should chair an independent Blue Ribbon Commission, like he did for the legalization of marijuana, and really investigate what is going on.
You can read the full report here: http://www.dir.ca.gov/dwc/Reports/SB863-Assessment-WC-Reforms-July-2015.pdf